US v. Gary Debenedetto, No. 14-7665 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-7665 UNITED STATES OF AMERICA, Petitioner - Appellee, v. GARY DEBENEDETTO, Respondent - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:14-hc-02172-BR) Submitted: July 24, 2015 Decided: August 18, 2015 Before KEENAN, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Robert E. Waters, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Jennifer D. Dannels, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gary Debenedetto committing him to appeals the the custody district of the court’s Attorney accordance with 18 U.S.C. § 4246(d) (2012). order General in We affirm. A person may be committed under § 4246 if, after a hearing, the district court “finds by clear and convincing evidence that the person defect is as a presently result of suffering which from his a mental release disease would create or a substantial risk of bodily injury to another person or serious damage to district property court’s of another.” finding that 18 the U.S.C. § 4246(d). Government has The established dangerousness under § 4246 by clear and convincing evidence will not be overturned on appeal unless it is clearly erroneous. United States v. LeClair, 338 F.3d 882, 885 (8th Cir. 2003); United States v. Cox, 964 F.2d 1431, 1433 (4th Cir. 1992). Dr. Robert Lucking—a staff psychiatrist at the Federal Medical Center in Butner, North Carolina (“FMC Butner”)—issued a report concluding that Debenedetto suffers from schizoaffective disorder and antisocial personality disorder and that his mental illness is such that his release would pose a substantial risk of bodily injury to another person or serious damage to the property of another. Debenedetto’s “substantial past This opinion was based on the following: history history and of violence—which well established 2 encompassed pattern” of his both verbal and individuals; physical his aggression mental illness directed and the against combination other of that illness and his alcohol use, factors the report described as resulting in a “substantial dangerous/aggressive behavior”; his increased lack of risk insight for into his mental illness and refusal of treatment; his history of offenses involving firearms and other weapons; his lack of “significant social support” and “meaningful social relationships with others”; his “poor adjustment” to the institutions to which he had been committed; and his scores on violence assessment instruments. Independent evaluator Dr. Katayoun Tabrizi issued a report concluding disorder that and Debenedetto adult antisocial suffers from behavior and schizoaffective had several risk factors associated with an increased risk of future violence, namely: the nature of his untreated mental illness; his history of aggressive and violent behavior; his lack of social support and financial stability, and his unemployment; his lack of insight into his mental illness and the need for treatment; and evidence of “excessive” alcohol use. In view of these factors, Dr. Tabrizi opined that Debenedetto was suffering from a mental disease as a result of which his release into the community would create a substantial risk of bodily injury person or serious damage to the property of another. 3 to another At a hearing, Dr. forensic psychiatry. Lucking testified as an expert in Consistent with his report, Dr. Lucking testified that Debenedetto was then not receiving treatment for his disorders based on his refusal of treatment, did not believe he had a mental disorder, had an extensive criminal history, and had been disruptive, assaultive while verbally housed Bureau of Prisons. in threatening, institutions and within physically the Federal Dr. Lucking testified further that both he and a risk assessment panel who evaluated Debenedetto concurred in the opinion that Debenedetto’s release into the community would pose a substantial risk of bodily injury to another and destruction to the property of another, and he summarized the factors considered in reaching that opinion. Based on this testimony and the forensic reports generated by Dr. Lucking and Dr. Tabrizi, the district court found by clear and convincing evidence that Debenedetto satisfied the criteria for commitment under § 4246(d). Debenedetto dangerousness evidence was because argues not he on appeal established had never that by his clear physically and substantial convincing assaulted officers while at FMC Butner and because his underlying federal charges did not involve “any physical assaults or violent behavior.” reject this argument. We As Debenedetto acknowledges, overt acts of violence are not required to prove substantial dangerousness 4 in a § 4246(d) case. United States v. Williams, 299 F.3d 673, 677 (8th Cir. 2002). Further, Debenedetto ignores information in both Dr. Lucking’s Lucking’s hearing and Dr. testimony Tabrizi’s that reports Debenedetto and made Dr. violent threats and engaged in physically aggressive behavior connected to his mental illness. We also reject Debenedetto’s remaining arguments. Even if Debenedetto had not experienced auditory hallucinations and was not experiencing paranoia or persecutory or delusional beliefs at the time of the hearing, the district court was entitled to consider his risk of dangerousness in light of his entire symptom profile, not just its most recent manifestation at the time of the commitment hearing. See id. Additionally, even if Debenedetto is intelligent and has a valid fear about allergies to antipsychotic medications, it is plain from the record that he suffers from psychotic mental illness with symptoms directly connected bodily to injury aggressive or behavior serious damage and to a the substantial property of risk of another. Further, even if Dr. Lucking’s report is not a “crystal ball” of future behavior as Debenedetto claims, a finding of substantial risk under § 4246 “may be based on any activity that evinces a genuine possibility of future harm to persons or property.” United States v. Sahhar, 917 F.2d 1197, 1207 (9th Cir. 1990). 5 Based on the entirety of Debenedetto’s behavioral, psychiatric, and symptom profile, the district court did not clearly err in its determination that Debenedetto suffers from a mental disease as a result of which his release would create a substantial risk of bodily injury to another or serious damage to the property of another. Accordingly, We dispense with contentions are we oral affirm the argument adequately district because presented in court’s order. the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 6
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